Citation Nr: 1212423
Decision Date: 04/04/12 Archive Date: 04/11/12
DOCKET NO. 04-39 521 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to service connection for a low back disorder, to include as secondary to the service-connected postoperative residuals of a right knee injury.
2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
3. Entitlement to an initial disability rating in excess of 10 percent for the left knee condition.
4. Entitlement to an effective date earlier than August 6, 2007, for the grant of service connection for a left knee condition.
REPRESENTATION
Veteran represented by: Georgia Department of Veterans Services
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Shauna M. Watkins, Associate Counsel
INTRODUCTION
The Veteran had active military service from December 1986 to December 1990, June 14, 2001, to June 15, 2001, and from February 2003 to August 2003.
The service connection claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the benefit sought on appeal.
The PTSD claim comes before the Board on appeal from a September 2010 rating decision of the VA RO in Atlanta, Georgia, which granted service connection for the Veteran's PTSD. The RO assigned an initial disability rating of 30 percent, effective April 13, 2010.
The left knee claims come before the Board on appeal from a September 2010 rating decision of the VA Appeals Management Center (AMC) in Washington, DC, which granted service connection for the Veteran's left knee. The AMC assigned an initial disability rating of 10 percent, effective August 6, 2007.
In February 2007, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is currently of record.
In April 2007, April 2008, October 2008, and September 2010, the Board remanded the service connection claim for further development to the AMC in Washington, DC. The development has been completed, and the claim is now returned to the Board for appellate disposition.
The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record in a January 2011 statement by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
With the exception of the service connection claim, the remaining issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC.
FINDING OF FACT
The Veteran's current low back disorder was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military, and is not shown to be caused or aggravated by a service-connected disability.
CONCLUSION OF LAW
Service connection for a low back disorder, to include as secondary to the service-connected postoperative residuals of a right knee injury, is not established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.326(a) (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran seeks service connection for a low back disorder. At the outset, the Board will first address two theories of presumptive service connection available for this claim.
First, certain diseases, chronic in nature, may be presumed to have been incurred during the active military service, if the evidence shows that the disease became manifest to a degree of 10 percent or more within one year from separation from the active service, even though there is no evidence of the disease during the active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis (i.e., degenerative disc disease) has been identified as a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309(a). However, the Board finds that the Veteran is not entitled to presumptive service connection for his currently diagnosed degenerative disc disease of the lumbar spine. The earliest post-service medical treatment records are dated from October 2004, and the Veteran was separated from the active duty in August 2003. The claims file contains treatment records and a VA examination dated from August 2003 to October 2004; however, these records primarily refer to the Veteran's service-connected knee disability, and do not refer to his lumbar spine. Thus, because no diagnosis of arthritis was made within one year of the Veteran's military discharge, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).
Second, service connection may be awarded for a "chronic" disorder when: (1) a chronic disorder manifests itself and is identified as such during the active military service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same disorder); or (2) a disorder manifests itself during the active military service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after the military discharge, and medical evidence relates the symptomatology to the Veteran's present disorder. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The evidence of record does not demonstrate that the Veteran had had his low back disorder since his active military service. The Veteran's service treatment records (STRs) do not document any complaints of or treatment for his low back disorder. The earliest medical evidence associated with the Veteran's lumbar spine is dated in October 2004, over one year after his military discharge. Thus, the Veteran is not entitled to service connection under this presumptive theory. Id.
The Veteran seeks service connection for a low back disorder. The Veteran's primary claim is that his low back disorder is related to his service-connected right knee disability. Nonetheless, the Board must address both direct and secondary service connection as to this claim.
To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131.
In regards to a current diagnosis, a VA magnetic resonance imaging (MRI) in November 2004 confirmed the presence of lumbar stenosis. The June 2007 VA examination also diagnosed the Veteran with degenerative disc disease of the lumbar spine. Thus, the Veteran meets the first requirement of service connection.
However, the Veteran's service treatment records (STRs) are silent for documentation of the disorder. The records reveal no complaints or treatment related to the Veteran's lumbar spine. In June 2001, while the Veteran was serving in the Reserves, he fell during a football game and injured his right knee. However, the record at that time contains no reference to a lower back injury. The Veteran's military separation examinations were normal in regards to his lumbar spine.
Post-service, the evidence shows that the Veteran initially began to have pain in his lower back in October 2004. See outpatient records from VA Medical Center in Atlanta. By December 2007, the Veteran was being treated for a back disorder regularly.
In regard to a medical nexus opinion, there are no nexus opinions of record linking the Veteran's low back disorder directly to his active military service. In June 2007, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine disorder. The examiner reviewed the claims file and examined the Veteran. The examiner then determined that the Veteran had a disk herniation, which "is caused by [a] discrete injury." The examiner stated that the Veteran gave no history of an injury to his back, but noted that the Veteran's occupation was "such that it would be quite possible that he would injure his back due to lifting and bending forces."
In December 2010, the VA examiner provided an addendum medical opinion. The examiner reviewed the claims file. The examiner then concluded that, "it is less likely than not that [the Veteran's] lumbar spine condition was incurred in the service, including at the time of the [June 2001] fall that caused his service-connected right knee disability." As support for this conclusion, the examiner reasoned that it is unlikely that the Veteran's disk herniation would relate back to an accident in the military Reserves that occurred "at least a decade prior." The examiner pointed out that the Veteran had a 2004 MRI performed, which showed a "large central and right paracentral disk herniation at the L4-5 level." Plain X-rays at that time showed no evidence of an acute injury or a significant abnormality. Thus, the examiner determined that the Veteran's degenerative disc disease of his lumbar spine would be compatible with his age. In regard to the disk herniation, the examiner state that such a problem would not have been present for years and would be more acute in nature.
There is no positive evidence to the contrary of these medical opinions in the claims file. Thus, based on these medical opinions, the Board finds that service connection on a direct basis is not warranted.
The Veteran also contends that the limping gait from his service-connected right knee disability caused wear and tear on his lower back. Turning to the issue of secondary service connection, in order to prevail under this theory of entitlement there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id.
The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the non-service-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service- connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).
It appears as though the new regulatory amendment poses a new restriction on claimants. Nonetheless, because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R.
§ 3.310 in effect before the revision, as this version is more favorable to the Veteran. See generally VAOGCPREC 7-03 and VAOPGCPREC 3-00.
Here, it is undisputed that the Veteran holds a current lumbar spine diagnosis. It is also undisputed that the Veteran is service-connected for a right knee disability. Therefore, the remaining question is whether there is a link between the non-service-connected disorder and the service-connected disability.
In this regard, in March 2007, the Veteran's private family practitioner submitted a report stating that she reviewed the Veteran's STRs and the current treatment records. She then concluded that "it is more likely than not that the Veteran's left knee problems and lower back condition are directly related to his service-connected right knee injury, postoperative." The practitioner provided no rationale for her opinion.
In June 2007, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine disorder. The examiner reviewed the claims file and physically examined the Veteran. The examiner then opined that it was less likely as not that the Veteran's low back disorder was etiologically related to or aggravated by his right knee disability. As rationale for this opinion, the examiner noted that the Veteran's right knee was stable and he had equal limb lengths. Additionally, the examiner stated that the Veteran had a disk herniation in his lumbar spine, and the right knee disability would not result in a disk herniation. The examiner pointed out that the Veteran's occupation was "such that it would be quite possible that he would injure his back due to lifting and bending forces."
A December 2007 VA outpatient note documents that the Veteran's "bilateral knee arthralgia are affecting his gait, which has a big impact on his back, too."
In December 2010, an addendum VA medical opinion was obtained. The examiner reviewed the claims file. The examiner then concluded that, "it is less likely than not that [the Veteran's] lumbar spine condition was caused by his service-connected right knee disability including pain in the knees, altered gait or abnormal weightbearing." The examiner noted the 2004 MRI, which showed a "large central and right paracentral disk herniation at the L4-5 level." Plain X-rays at that time showed no evidence of an acute injury or a significant abnormality. Thus, the examiner determined that the Veteran's degenerative disc disease of his lumbar spine would be compatible with his age. He reasoned that it was unlikely that a right knee disability would produce a disk herniation in his lumbar spine.
In this case, the Board finds the negative evidence outweighs the positive on the issue of secondary service connection. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The VA examiner, in June 2007 and December 2010, provided a detailed explanation as to why the Veteran's low back disorder is caused by or aggravated by his right knee disability. The private examiner provided no rationale for her opinion. Thus, the Board finds the probative value of the VA examination reports is greater than the cursory conclusions of the private medical provider. The Board is not persuaded by the private doctor's statement because there is no discussion of the intervening post-service back injuries that the Veteran may have sustained in his occupation and their relevance to the claimed low back disorder. This lack of discussion of the potential post-service injuries is noteworthy as it shows that the doctor failed to consider a significant intervening trauma in her assessment of the cause of the Veteran's pain. As such, the Board finds the statement to be of low probative value.
Therefore, the Board finds that the evidence is not in equipoise. Here, the VA examiner accurately and thoroughly characterized the evidence of record and conducted a comprehensive examination of the Veteran's lumbar spine. The examiner's reports of the Veteran's medical history and the clinical findings are consistent with the entire body of medical evidence of record. There is no basis on which to find that the VA examinations are incomplete or insufficient in any way. As such, service connection on a secondary basis is also not warranted.
In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Veteran contends that the limping gait from his service-connected right knee disability caused wear and tear on the low back. In this regard, he submitted evidence from a medical study suggesting that limping causes a person to put extra weight on an opposite normal leg, causing the normal leg and the spine of the limping person to transmit increased loads during walking. The medical study indicates that limping, in some specific instances, can cause back pain or aggravate preexisting back pain. The Veteran also submitted lay statements from his co-workers and friends, describing the Veteran's back pain. The Veteran also submitted his own lay statements.
The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id.
Although the Veteran is competent to report that he injured his back during his active military service and that his right knee disability caused an altered gait that resulted in his current low back disorder, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of his low back disorder to be credible, since his STRs make no reference to a back injury and since the negative evidence outweighs the positive evidence in the claims file. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).
It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a back injury during his active military service, and which fails to competently link his low back disorder to his service-connected right knee disability. Additionally, the VA examiner addressed his claim and pointed out that the type of back injury the Veteran had was not caused by limping.
For the reasons set forth above, the Board finds that the Veteran's lay statements to not be credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required.
The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim. Thus, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for a low back disorder, to include as secondary to the service-connected postoperative residuals of a right knee injury, is denied.
Notice and Assistance
Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in December 2004, May 2007, April 2008, November 2008, and December 2009 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. Letters dated in March 2006, April 2008, November 2008, and December 2009 also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).
All of these duty-to-assist letters were not provided before the initial RO adjudication of his claim. However, after he was provided the letters, he was given a full opportunity to submit evidence, and his claim was subsequently readjudicated. He has not claimed any prejudice as a result of the timing of the letters, and the Board finds no basis to conclude that any prejudice occurred. Any notice defect in this case was harmless error. The content of the aggregated notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). After VA provided these notices, the Veteran communicated on multiple occasions with VA, without informing it of pertinent evidence. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification.
VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of STRs and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. He was afforded the opportunity for a Board hearing. He has been afforded VA examinations. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required.
ORDER
The claim for service connection for a low back disorder, to include as secondary to the service-connected postoperative residuals of a right knee injury, is denied.
REMAND
Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claims can be properly adjudicated.
The Veteran filed a timely Notice of Disagreement (NOD) in January 2011 in response to the September 2010 rating decision, which granted service connection for his PTSD. The Veteran appealed the initial disability rating assigned. In a separate January 2011 NOD, the Veteran appealed the effective date and initial disability rating assigned for his left knee condition in response to the September 2010 rating decision, which granted service connection for this condition. To date, the RO has not responded to these NODs with a Statement of the Case (SOC) addressing the issues. The Board finds that a SOC must be issued. Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
Issue a SOC addressing the Veteran's claims of: (1) entitlement to an initial disability rating in excess of 30 percent for PTSD; (2) entitlement to an initial disability rating in excess of 10 percent for the left knee condition; and, (3) entitlement to an effective date earlier than August 6, 2007, for the grant of service connection for a left knee condition. Notify the Veteran of his appeal rights and that he must file a timely Substantive Appeal (on VA Form 9) if he desires to perfect the appeals of these claims.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West 2002).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs